Redefining ‘Harm’ Could Gut Protection of Endangered Species
President Donald Trump’s administration proposed a new rule last Wednesday that would rescind widespread habitat protections for species protected under the Endangered Species Act, a landmark law enacted in 1973 to conserve the country’s imperiled animals and plants.
This story was originally published by Inside Climate News and is reproduced here as part of the Climate Desk collaboration.
That would open the door for developments across the country to be approved even if they significantly disrupt critical habitat for species listed under the Endangered Species Act. The proposed rule, posted in the U.S. Federal Register by the U.S. Fish and Wildlife Service, would “rescind the regulatory definition of ‘harm,’” which is defined as any significant habitat modification or degradation that actually kills or injures wildlife.
“There’s just no way to protect animals and plants from extinction without protecting the places they live, yet the Trump administration is opening the floodgates to immeasurable habitat destruction,” said Noah Greenwald, co-director of endangered species at the Center for Biological Diversity. “This administration’s greed and contempt for imperiled wildlife know no bounds, but most Americans know that we destroy the natural world at our own peril. Nobody voted to drive spotted owls, Florida panthers, or grizzly bears to extinction.”
If approved, he said, the rule would mean endangered species would only be protected from actions that intentionally lead to the harm of a species. “It’s just foundational to how we’ve protected endangered species for the last 40-plus years, and they’re just completely upending that,” Greenwald said.
In many cases, the “harm” rule has not blocked projects altogether, but rather resulted in different designs that reduce impacts on endangered species.
Just the day before last Wednesday’s proposed rule, the Trump administration put out a rescission notice to roll back a rule that put conservation on equal footing with extractive uses on the nation’s public lands. The two decisions, along with scores of others in recent months since President Trump took office, threaten species and the habitats they depend on across the country, experts and environmentalists say.
The U.S. Fish and Wildlife Service did not respond to a request for comment.
By law, the ESA prohibits the “take” of an endangered species, which includes actions “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Historically, the “harm” part of this mandate encompasses “any activity that can modify a species’ habitat.”
This interpretation of “harm” has long been used by agencies to extend protections for endangered species to the land or ocean area that it relies on. For example, an oil or gas project may not be able to drill or be forced to modify operations in a certain area that provides habitat for an endangered animal, such as a dune sagebrush lizard. In many cases, the “harm” rule has not blocked projects altogether, but rather resulted in different designs that reduce impacts on endangered species.
In 1995, a group of landowners and timber interests in the Pacific Northwest and the Southeast challenged the regulation’s interpretation in a push to log forests where endangered northern spotted owls and red-cockaded woodpeckers lived. In a 6-3 decision, the Supreme Court upheld the broad definition of “harm” on the basis of the Chevron Doctrine, a principle that defers to federal agencies’ expertise for carrying out laws. Last year, however, Chevron was overturned, and the Trump administration has seized on that in the new proposed rule.
The new proposal would eliminate this “harm” definition — and the habitat protections that come with it, according to Dave Owen, an environmental law professor at the University of California, San Francisco.
“The shift here would be to say that just habitat modification that is detrimental to a species, even if the detriment is fairly direct, is not encompassed within the word ‘harm,’” Owen said. The majority of habitat protections related to the ESA fall under the “harm” interpretation, according to a 2012 study by Owen. Now, under the proposal, “the word ‘harm’ is essentially going to be read as an inconsequential nullity,” he said.
The Trump administration says that its proposal is more in line with the language in the ESA, arguing that the regulations surrounding the word “harm” should be defined as an “affirmative act directed immediately against a particular animal,” rather than one that could indirectly harm an endangered species’ population, according to the posting of the proposed rule in the Federal Register. However, research shows that habitat loss is a primary driver of extinction in the United States.
In the case of the spotted owl, nests must have a 70-acre circle of land around them protected, even on private lands used for timber. “With this change, they don’t have to do that anymore,” said Greenwald with the Center for Biological Diversity.
The Trump administration’s proposal is the latest in a series of deregulatory moves to undermine the ESA, which Republicans have long attacked for stifling economic development and interfering with states’ ability to manage wildlife. Rolling back its ability to protect species was outlined in Project 2025, the conservative roadmap published before the 2024 elections guiding much of the administration’s actions.
Under the proposal, “the word ‘harm’ is essentially going to be read as an inconsequential nullity.”
On Inauguration Day, Trump declared a “national energy emergency,” which outlined a process to enable fossil fuel projects to bypass the typical environmental reviews associated with approval, including those required by the Endangered Species Act. The order directed the heads of all agencies and the secretary of the Army to identify projects “that may be subject to emergency treatment” within 30 days. By mid-February, the U.S. Army Corps of Engineers marked for review more than 600 permit applications for energy-related projects that could qualify for the fast-pass treatment, though environmental groups argue these efforts would disrupt crucial wetlands.
To support efforts for “unleashing energy dominance,” the secretary of the Department of Interior, Doug Burgum, issued several orders in February that aim to “suspend, revise, or rescind” several ESA regulations enacted during the Biden administration. This new proposal to rescind the harm definition could also pave the way for new energy projects, experts say.
The historic interpretation of the regulation served “as sort of a caution to people not to go down and knock down trees where red-cockaded woodpeckers were nesting. And if you change the definition, I think there’s the risk that people are going to go out and engage in that behavior in the real world,” said Andrew Mergen, the director of Harvard Law School’s Emmett Environmental Law and Policy Clinic. “The rule plays a really important role in preventing people from doing that sort of thing, and at the same time, it has hardly damaged the economy, or made economic progress impossible.”
The public will have 30 days to submit comments on the proposal. Environmental groups like Earthjustice have vowed to challenge the rule in court.
Meanwhile, last Tuesday, the administration proposed rescinding the Public Lands Rule — a landmark achievement of the Biden administration that placed conservation on equal footing as extraction across the nation’s public lands following an extensive public comment period. Ninety percent of comments received supported the rule. Another rule implemented last year that restricts oil and gas development across millions of acres of public lands in the National Petroleum Reserve-Alaska was also rescinded.
“This is not policy — it’s a blatant giveaway to industry that threatens to dismantle decades of conservation progress, shut down public access, harm wildlife and accelerate the reckless sell-off of our natural resources,” said Alison Flint, senior legal director at The Wilderness Society, in a statement concerning the two proposed rescission notices.
Already this year, a series of executive orders and actions by Trump have removed protections across millions of acres in national forests to boost the logging industry, streamlined the permitting process for mines, made the extraction of minerals on public lands with suitable resources the priority use, and targeted national monuments elimination. Staff at national parks have also been gutted.
All of this has come despite polling showing that conserving public lands is universally popular across party lines.
“The Trump administration is just working to undermine all protections for air, for water, for wildlife and climate — systematically and rapidly,” Greenwald said.
Kiley Price is a reporter at Inside Climate News, with a particular interest in wildlife, ocean health, food systems, and climate change.
Wyatt Myskow covers drought, biodiversity, and the renewable energy transition for Inside Climate News.
We voted by a tremendous mandate (48% to 47%) to keep all illegal immigrants out of our country. Rare monarch butterflies and other vermin fly across our country from Canada and Mexico seemingly at their whim. They are uninvited and unwelcome. They apply for no passports and have no visas. They take jobs from the native species already in our country with no conscience. It needs to stop, NOW. Having comfortable feeding stops within the US is like sending them an engraved invitation to come here, and they selfishly and with utter disregard to the mandate (see above) flood into this country to try to make a better life for themselves. Walls haven’t worked. What will? Destroy their habitats and feeding grounds and get rid of the problem once and for all. And the fact that those feeding grounds also feed the native species is a red herring. The issue is immigration. Incidental consequences to native residents are of no moment.